The mere fact that we have alternative means to enforce a principle, such as voting, does not diminish its constitutional stature. Americans can vindicate federalism, separation of powers, equal protection, and voting rights through the ballot box as well, but that does not mean these constitutional guarantees are not independently enforceable.
By its very nature, the Constitution “withdraw[s] certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U.S. at 638. When fundamental rights are at stake, individuals “need not await legislative action.” Obergefell, 135 S. Ct. at 2605.
Indeed, in this sui generis circumstance, waiting is not an option. Those alive today are at perhaps the singular point in history where society (1) is scientifically aware of the impending climate crisis, and (2) can avoid the point of no return. And while democracy affords citizens the right “to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times[,]” id. (quoting Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 312 (2014)), that process cannot override the laws of nature. Or, more colloquially, we can’t shut the stable door after the horse has bolted.
As the last fifty years have made clear, telling plaintiffs that they must vindicate their right to a habitable United States through the political branches will rightfully be perceived as telling them they have no recourse. The political branches must often realize constitutional principles, but in a justiciable case or controversy, courts serve as the ultimate backstop. To this issue, I turn next.
Of course, “it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996). So federal courts are not free to address every grievance. “Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972). Standing is “a doctrine rooted in the traditional understanding of a case or controversy,” developed to “ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
A case is fit forjudicial determination only if the plaintiff has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); then citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). As to the first two elements, my colleagues and I agree: Plaintiffs present adequate evidence at this pre-trial stage to show particularized, concrete injuries to legally-protected interests, and they present further evidence to raise genuine disputes as to whether those injuries—at least in substantial part—are fairly traceable to the government’s conduct at issue. See Maj. Op. at 18–21. Because I find that plaintiffs have also established the third prong for redressability, I conclude that plaintiffs’ legal stake in this action suffices to invoke the adjudicative powers of the federal bench.